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Liability of Physicians, Therapists and
Other Health Professionals for Sexual Misconduct With Patients

By Linda Jorgenson and Pamela K. Sutherland

This article has been reproduced on www.advocateweb.org with permission from Pamela K. Sutherland.

Pamela K. Sutherland is a litigation attorney whose practice focuses on the representation of patients/clients exploited by their therapists/physicians/attorneys. She has authored several articles on professional-client sexual exploitation, and is a coauthor of the book, Abuse of Trust: Sexual Misconduct by Fiduciaries--A Guide to Litigating Abuse by Professionals (Michie, 1995).

Introduction
Literature on the Topic
Liability for Sexual Misconduct
Conclusion
Endnotes

I. Introduction

Health care providers have recently come under close scrutiny for their sexual contact with patients. While the Hippocratic Oath has generally bound physicians since antiquity to "First, do no harm" and specifically to avoid sexual contact with patients,[1] modern courts have been reluctant to impose liability for its breach.[2] However, liability for sexual misconduct by health care providers has been imposed under many other theories. This paper reviews the professional literature on the prevalence of sexual contact by health care providers and harm caused by it. We then explain theories of liability under which therapists, physicians and other health care providers may be found liable for sexual contact with patients. We conclude that theories of liability are still evolving. The issues of liability for therapist-patient posttermination sexual contact and civil malpractice liability for non-psychiatric physician-patient sexual contact are ripe for further consideration.

II. Literature on the Topic

According to scholars on the subject, the proscription against sexual contact with patients contained in the Hippocratic Oath was formulated out of concern for physicians' already poor reputations in the community at that time. Physicians were viewed in ancient Greece as dubious characters at best. Prohibition of sexual contact with their patients was instituted to improve their image with the public.[3]

In the early 1970's, studies in the United States began to document the prevalence of physician-patient sexual contact and its consequences. The earliest comprehensive study was conducted by Kardener and others, and surveyed psychiatrists, obstetrician/gynecologists, surgeons, internists and general practitioners.[4] Up to thirteen percent of the respondents reported that they had engaged in erotic behavior with patients, ranging from sexual intercourse (7.2%) to kissing.[5]

A spate of studies followed, notably by Holroyd & Brodsky,[6] Gartrell and others,[7] and Pope and others.[8] Holroyd & Brodsky and Pope documented the incidence of sexual contact among psychologists while Gartrell focused on the psychiatrist-patient relationship. Pope concentrated on the harm that was caused by psychologists' sexual involvement with patients. Feldman-Summers and Jones surveyed psychologists to determine the effects of sexualized contact by therapists and other health care providers on their patients.[9] Patients who had engaged in sexual contact with their health care provider suffered from "mistrust of and anger toward men" and had significantly more symptoms after termination of treatment.[10] Other effects of the sexual contact included anger, shame, humiliation, depression, and anxiety.[11] Feldman-Summers and Jones found that injuries caused patients by providers' sexual contact did not differ significantly between therapists and other health care providers: the damage resulting from breach of trust that occurs in either situation manifests itself in similar ways.[12]

Few additional studies have been conducted of non-psychiatric physician-patient sexual contact or of other providers' practices with respect to erotic contact despite the finding by Kardener that psychiatrists were among the least likely of the specialists surveyed to engage in sexual contact with patients.[13] A recent study by Gartrell and others reaffirms Kardener's findings.[14]

Shortly after the publication of the studies, the major mental health organizations adopted ethical rules prohibiting therapist-patient sexual contact.[15] It was not until 1989, however, that the American Medical Association adopted Opinion 8.14, declaring it unethical for physicians to engage in sexual relations with patients during the course of the professional relationship.[16] This position was expanded upon in a 1991 article by the Council on Ethical and Judicial Affairs of the American Medical Association, which cited all previous studies.[17] The Council grounded its reasoning primarily on the patient's trust in the physician to work only for the benefit of the patient.[18]

The mental health care profession is unanimous in its condemnation of therapist-patient sexual contact, concluding that it is unethical and, in a large majority of cases, causes harm to the patient. Although the American Medical Association did not distinguish between non-psychiatric physicians and psychiatrists in its ethical opinion, growing attention is being paid to the prevalence of and harm caused by non-psychiatric physician-patient sexual contact.

III. Liability for Sexual Misconduct

There were few allegations of sexual misconduct brought against physicians by patients prior to the last half of the twentieth century.[19] Cases that did exist involved allegations of rape or battery by the physician.[20]

Non-forced sexual relations between health care providers and patients were not substantively addressed until the advent of psychotherapy. Freud wrote extensively on patients' "transference-love" toward their analysts and cautioned against analysts' sexual involvement with patients.[21] Transference has come to refer to the phenomena whereby a patient "transfers" intense emotions and feelings, properly belonging to the patient's past, onto the therapist. The patient may believe that he or she is "in love" with the therapist.[22]

The earliest noncoercive sexual contact cases focused on the therapist's mishandling of the patient's transference.[23] More recently, arguments have been made that physicians and other health care providers who do not work specifically with transference should be found liable for sexual contact with patients.[24]

A. Therapist-Patient Sexual Misconduct: Common Law Causes of Action

The first recorded case alleging therapist-patient sexual contact based its theory of liability on "transference." In the 1968 case of Zipkin v. Freeman,[25] Mrs. Zipkin sought psychotherapeutic counseling from Dr. Freeman. Over the course of the therapy Mrs. Zipkin experienced strong positive transference toward Dr. Freeman and "fell in love" with him. Dr. Freeman reciprocated and took Mrs. Zipkin on social outings, overnight trips and nude swimming parties. He engaged in sexual relations with Mrs. Zipkin and convinced her to purchase a farm for him and work on it as a manual laborer, leave her husband, and then steal her husband's suits for Dr. Freeman to wear.

Mrs. Zipkin eventually sued Dr. Freeman for psychological damages caused by his negligent behavior.[26] She alleged that as a result of Dr. Freeman's treatment, she suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, was irritable and suffered financially."[27] The court held that Dr. Freeman had negligently mishandled Mrs. Zipkin's transference. The court stated that such negligence was analogous to any other medical negligence: "It is pretty clear from the medical evidence that the damage would have been done to Mrs. Zipkin even if the trips outside the state were carefully chaperoned, the swimming done with suits on, and if there had been ballroom dancing instead of sexual relations."[28]

Since Zipkin v. Freeman,[29] most jurisdictions have recognized a common law cause of action against therapists for sexual misconduct with patients under one or more of the following theories.[30]

1. Negligence/Malpractice

Negligence or malpractice consists of four elements: a duty of care, deviation from the standard of care, a causal relationship between the duty owed and the harm sustained, and harm.[31] In Zipkin, the court identified the therapist's sexual misconduct as the therapist's negligent failure to properly handle the patient's transference and the therapist's own countertransference (the therapist's own "transference" toward the patient).[32] Other courts have consistently adopted this reasoning.[33]

Commentators have noted that engaging in sexual contact with a patient is not the only way of mishandling transference.[34] For example, therapists frequently engage in "boundary violations," actions that violate the boundaries that properly exist between therapist and patient.[35] Sexual contact is a boundary violation, as is taking one's patient on social outings or swimming parties as Mrs. Zipkin's therapist did.[36]

Therapists may also deviate from standards of care in ways other than mishandling transference. Improper regression techniques, such as those alleged in the recent Bean-Bayog case, also constitute negligence.[37] Other acts of negligence may include a therapist's improper use of hypnosis, improper use of drugs or alcohol with a patient,[38] failure to appropriately refer,[39] and wrongful termination or abandonment of patients.[40]

Standards of treatment may soon become easier to determine. The American Psychiatric Association has announced the forthcoming release of a guidebook of practice standards for psychiatrists.[41] State licensing boards and state professional organizations are also drafting psychotherapy guidelines.[42] In the future, failure to meet these standards may be considered evidence of malpractice.

2. Breach of Fiduciary Duty

Fiduciary theory grew out of the relationship in trust and estate law between trustee and beneficiary.[43] A fiduciary relationship exists when one party reposes trust and confidence in the other, more powerful party.[44] The more powerful party then has a duty to act only in the trusting party's best interest. Therapists have been found to have a fiduciary relationship with their patients.[45]

Fiduciary theory provided the rationale for imposing liability on the psychiatrist in Roy v. Hartogs.[46] Dr. Hartogs "treated" his patient for her lesbianism by engaging in sexual relations with her. When his patient sued him, the psychiatrist's defense was that her claim was essentially alienation of affections, which was no longer a recognized cause of action. The court disagreed, holding that, "[The plaintiff] alleges coercion by a person in a position of overwhelming influence and trust."[47] Fiduciary theory has continued to provide a basis for claims against therapists and has also been used to toll the statute of limitations.[48]

3. Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress is a relatively new tort remedy particularly well-suited to therapist sexual contact cases. The elements are similar to those of any other tort action.[49] However, secondary victims, such as the patient's spouse, partner or parent may recover under this theory. In Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.,[50] the therapist was alleged to have sexually assaulted child patients. The court held that the mothers of the children had stated a claim for negligent infliction of emotional distress against the therapist and the therapist's employer.[51] In Richard H. v. Larry D.,[52] the court found that "[i]t is readily foreseeable that a patient seeing a psychiatrist for purposes of stabilizing and improving his or her marriage would feel betrayed and suffer emotional distress upon learning that the psychiatrist has, during the course of the patient's treatment, been engaging in sexual relations with the patient's spouse."[53]

As the cause of action continues to develop, its applicability to therapist malpractice cases should be considered.[54] The requirement for physical harm, for example, is being ebbed away within the jurisdictions. A recent Massachusetts case broadened the required physical harm to such an extent that symptoms such as headaches, sleeplessness and inability to concentrate are sufficient as physical harms.[55]

4. Intentional Torts

Intentional torts include battery, assault, intentional infliction of emotional distress, and fraudulent misrepresentation. Therapists' malpractice insurers frequently exclude from coverage intentional acts, so patients seeking financial compensation often proceed on negligence theories alone.[56]

Recent cases have involved allegations of fraudulent misrepresentation by therapists. In DiLeo v. Nugent,[57] a patient sued her psychiatrist for sexual contact, alleging that the psychiatrist had fraudulently misrepresented the treatment to her. The court agreed, finding that the psychiatrist's actions met the elements of the tort: (1) A false representation was made; (2) the falsity was known to the therapist; (3) the misrepresentation was made for the purpose of defrauding the plaintiff; (4) the plaintiff relied on the misrepresentation, had a right to rely on it, and would not have engaged in sexual relations if the misrepresentation had not been made; and (5) the plaintiff suffered a loss or injury by reason of the misrepresentation.[58]

5. Breach of Contract/Breach of Implied Warranty

Other theories of liability are breach of contract and breach of implied warranty. Breach of contract theory was successful in Anclote Manor Foundation v. Wilkinson.[59] In that case, the therapist engaged in sexual contact with his patient who subsequently committed suicide. The patient's husband successfully brought a claim for breach of contract against the therapist and the hospital which employed the therapist. However, the husband's recovery was limited to the fees he paid the therapist and hospital for treatment of his wife.[60]

The theory of breach of implied warranty has not been as successful in therapist abuse cases. In Dennis v. Allison,[61] the court found that patient had adequate remedies available to redress wrongs committed by her therapist when the therapist engaged in sexual relations with the patient, so that imposition of breach of implied warranty theory was unnecessary.

6. Spousal Claims

The class of potential plaintiffs in a therapist sexual abuse case includes the patient's spouse. In most jurisdictions, the spouse has an independent claim against the therapist for loss of consortium.[62] A spouse may also have other independent causes of action, such as alienation of affection or criminal conversation. In Norton v. Macfarlane,[63] the psychiatrist engaged in sexual relations with his patient, thereby causing her to leave her husband and children. The patient's husband sued and the Utah court upheld his claim for alienation of affections, a tort still recognized in Utah.

There have been cases in which the therapist becomes sexually involved with a patient's spouse. In Mazza v. Huffaker,[64] the court found that the psychiatrist had acted negligently by engaging in sexual relations with his patient's spouse. More recently, in Figueiredo-Torres v. Nickel,[65] when the therapist engaged in sexual contact with patient's wife while counseling both patient and wife, the Maryland court found that the therapist was negligent and had intentionally inflicted emotional distress on his patient. The therapist told his patient he should stay away from his wife because he had bad breath, and was a "'codfish' and that his wife deserved a fillet.'"[66]

Malpractice actions by patients' spouses against therapists for sexual involvement with the patient/spouse have not generally been successful. In Homer v. Long,[67] the therapist engaged in a sexual relationship with a patient and the patient's spouse sued under various negligence theories. The court held that the spouse failed to state a valid claim primarily because the damages suffered (the adultery or the breakup of the marriage) constituted "alienation of affections," a cause of action that has been abolished in Maryland. The court further stated that the therapist owed no duty to the spouse "even if, as here, the spouse is the one who initially employed the therapist and is paying the therapist's fees."[68]

7. Employer Liability

A patient may have a cause of action against the therapist's employer for damages arising out of sexual contact in the course of the professional relationship. Various theories of liability may be available depending upon whether the therapist is in fact an employee or simply an independent contractor. Different legal standards govern liability in professional partnerships or practice groups: in many jurisdictions, partners are liable for their partner's negligent acts;[69] "joint venturers" may also be held responsible for their co-venturers negligence.[70] In supervisory relationships prescribed by third-party insurers such as Blue Cross/Blue Shield the supervisor may be held liable for acts committed by the therapist under supervision.[71]

However, if the employer is a public entity, it may be protected from liability under the doctrine of governmental immunity. If the employer qualifies as a charity, it may either be wholly[72] or partially[73] insulated from liability under a charitable immunity doctrine.

The two primary theories of employer liability are vicarious liability and employer negligence.

a. Vicarious Liability

(1) Respondeat Superior

Under the theory of respondeat superior, employers may be held strictly liable for their employees' negligence, if the negligent conduct was within the scope of the employee's job. There may be disagreement, however, over what constitutes the "scope of employment."

Restatement (Second) of Agency [[section]] 228 sets out the test adopted by most jurisdictions:

Conduct of a servant is within the scope of employment if, but only if:
1. it is of the kind he is employed to perform;
2. it occurs substantially within the authorized time and space limits;
3. it is actuated, at least in part, by a purpose to serve the master; and
4. if force is intentionally used by the servant against another, the use of force is not unexpected by the master.
Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.[74]

Some courts have found that the employee's wrongful act must be motivated at least in part by a desire to serve the employer if the employer is to be held liable under the theory of respondeat superior. In Andrews v. United States,[75] for example, the court held that the employer was not liable for the acts of a physician's assistant who "seduced" a patient because the physician's assistant was not furthering his employer's business by seducing the patient.[76]

Other jurisdictions, however, have abandoned the "motivation to serve" test. For example, in Marston v. Minneapolis Clinic of Psychiatry,[77] the court applied a "but-for" test and held the clinic liable for its employee's sexual misconduct. The court found that the jury could weigh the facts and determine that the sexual contact would not have occurred but for the psychologist's employment with the clinic.[78]

Still other jurisdictions have retained but modified the "motivation to serve" test. In Doe v. Samaritan Counseling Center,[79] the court held that where the sexual contact arises out of and "is reasonably incidental to the employee's legitimate work activities, the 'motivation to serve' test will have been satisfied."[80] The court reasoned that because an employee is never authorized to commit a tort, the Restatement must mean "only that the act which leads to the tortious behavior cannot be different in kind from acts the employee is authorized to perform in furtherance of the employer's enterprise."[81] "The basis of respondeat superior has been correctly stated as the desire to include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise, and thus distribute the burden among those benefitted by the enterprise."[82]

(2) Common Carrier Liability

Traditionally, common carriers such as railroads have been held by the courts to owe to their passengers a duty of extraordinary care. Their liability for harm flows from the passengers' surrender of the ability to protect themselves from harm. "The significant relationship is that of the carrier and its passenger, and the imposition of liability is premised on the control that is surrendered by the one to the other."[83]

More recently, courts have extended this duty of extraordinary care to innkeepers, hospitals and other entities who invite the public to become, in effect, guests in their facilities. In Stropes v. Heritage House Childrens Center of Shelbyville, Inc.,[84] the residential care facility employed a nurse's aide who sexually assaulted a mentally retarded resident. The facility was found liable for the resulting damage. The court held that "[w]hen Heritage accepted [the plaintiff] as a resident of its facility, it was fully cognizant of the disabilities and infirmities he suffered which rendered him unable to care for himself and which, in fact, undoubtably formed the basis of their relationship. Their 'contract of passage' contemplated that the entire responsibility of [the plaintiff's] comfort, safety and maintenance would be on Heritage...." Similarly, in Vannah v. Hart Private Hospital,[85] the court held a hospital liable when a patient's jewelry was taken from her person while she was under anesthesia. The court analogized the hospital's contract with its patient to that of a common carrier with its passenger. Because the agreement of the parties anticipated that the plaintiff would be unable to guard her own security, the hospital was held to have assumed the duty to protect her while under its care.[86]

b. Liability for the Employer's Negligence

An employer may be found directly liable for its own negligence with respect to the hiring, training, and retention of its employees. The corporate negligence doctrine first applied to hospitals in Darling v. Charleston Memorial Hospital,[87] established a hospital's overall responsibility for the quality of patient care services provided and an independent duty of care owed by hospital to the patient.

Hospitals have a duty to properly screen potential employees that is separate from the liability of the employee for his or her acts.[88] Employers may also be found liable for negligently supervising or failing to supervise their employees. In Destefano v. Grabrian,[89] the employer was found liable for negligently supervising a priest employed as a marriage counselor who became sexually involved with a client. In Andrews v. United States,[90] the United States government was held liable to a patient and her husband when a supervising physician negligently failed to terminate the relationship between the physician's assistant and the patient after receiving information as to the assistant's sexual impropriety with the patient at an early stage.[91]

Employers have also been found liable for negligent retention of employees. In Copithorne v. Framingham Union Hospital,[92] the hospital was liable when a patient alleged that the hospital was negligent in continuing staff privileges of a physician who raped her after it knew or should have known that the physician "posed a risk of harm to women" based upon prior conduct. In Thelen v. St. Cloud Hospital,[93] the court held the hospital liable in negligence for its failure to report an employee's sexual abuse of a patient.

8. Miscellaneous Issues

Other issues of concern for a patient pursuing a therapist misconduct case are the statute of limitations, posttermination liability, and malpractice insurance coverage.

a. Statute of Limitations

The statute of limitations provides a set period of time within which a cause of action must be brought. This creates a problem because patients are often unable to come forward for many years to file a complaint against a therapist who engaged in sexual misconduct. The very damage caused by the relationship precludes the patient from recognizing the connection between the harm suffered and the therapist's treatment. Some jurisdictions have addressed this problem by statutorily adopting a "discovery rule" which extends the limitations period until the patient "discovers" that he or she was harmed and that the therapist's treatment was the cause of the harm.[94]

In other jurisdictions, the limitations period has been extended by courts' application of the discovery rule, particularly in the area of psychotherapist sexual misconduct cases.[95] In Greenberg v. McCabe,[96] for example, the court found that factors present by virtue of the therapist-patient relationship prevented the patient from "discovering" her cause of action until years after the abuse by her psychiatrist began.[97]

Other jurisdictions recognize the doctrine of equitable estoppel to toll the statute of limitations. The New York court in Coopersmith v. Gold,[98] recently held that a psychiatrist was equitably estopped from asserting the statute of limitations as a defense. The psychiatrist and patient began a sexual relationship during the course of therapy. Although the therapy terminated at some point in 1981, the patient and therapist continued to have a sexual relationship until 1984 and continued to see each other until 1985. The patient subsequently filed a malpractice action against the therapist in 1986. The court rejected the psychiatrist's assertion of the statute of limitations as a defense, accepting the plaintiff's theory that her "affair" with defendant was the result of transference. The patient contended that the psychiatrist "knew or should have known that her romantic feelings about him were borne out of transference but that he falsely advised her that such was not the case in order to exploit her sexually." The plaintiff further claimed that she was unable to appreciate the "reality" of her situation and understand defendant's actions as malpractice until he finally denied their love affair in September of 1985. The court found that the plaintiff had presented facts which could demonstrate that the long delay between the accrual of the cause of action and the institution of the legal proceeding was the result of defendant's affirmative wrongdoing.[99]

The theory of fraudulent concealment has also been applied in therapist sexual misconduct cases. In Riley v. Presnell,[100] the court stated: "There are fiduciary aspects to the psychotherapist-patient relationship. Failure of a psychotherapist to reveal facts relevant to a potential malpractice action will toll the statute of limitations until the plaintiff discovers the cause of action....The relevant inquiry, therefore, is identical to the discovery rule...."

b. Posttermination Liability

In some jurisdictions, the therapist may be held liable for sexual contact with a patient after the professional relationship terminates. In Colorado[101] and Wisconsin,[102] the prohibited period extends for six months after proper termination; in Illinois[103] the time period is one year and in California the period is two years. In Minnesota,[104] if the former patient can show emotional dependency, the period can be up to two years.

The only case to address the issue at common law is Noto v. St. Vincent Hospital and Medical Center.[105] In Noto, the patient entered the hospital specifically for treatment of drug abuse and "seductive behavior." After the treatment ended and the patient had been out of the hospital for approximately three weeks, her treating therapist began a sexual relationship and reintroduced her to drug use. The court found that the therapist was not insulated from liability since the sexual relationship stemmed from and was a product of the original treatment.

Recent controversy over liability for posttermination sexual relationships with patients has led several of the major mental health organizations to adopt ethical rules regarding posttermination contact.[106] The American Psychological Association, for example, has established a two-year posttermination rule.[107] The American Psychiatric Association is reportedly considering the adoption of a rule providing that sexual contact with a former patient is never acceptable.[108] Such a sweeping prohibition may bring up constitutional issues that are beyond the scope of this paper. However, plaintiffs' attorneys may argue that there is liability for posttermination sexual contact.

c. Malpractice Insurance Coverage

Patients' claims for sexual contact with therapists have generally been covered under the therapist's professional liability insurance.[109] The traditional argument has been that the sexual contact was the manifestation of the therapist's negligent mishandling the patient's transference and the therapist's own countertransference. As handling transference is part of the therapist's professional responsibility, the negligent mishandling of transference is covered by malpractice insurance for "professional services rendered." Insurers' arguments that sexual contact should not be covered because it is intentional and/or criminal conduct was countered by a Minnesota court in St. Paul Fire & Marine Ins. Co. v. Love,[110] with an analogy to automobile coverage:

[W]here transference is a treatment phenomenon, it is no more incongruous for the professional liability carrier to insure the therapist against the risk he may not abstain from a sexual relationship with a patient, than it is for the auto liability carrier to insure a driver against the risk he may not abstain from exceeding the speed limit or driving while drunk.[111]

Recently, insurance carriers have begun specifically excluding sexual contact from coverage under malpractice policies, or limiting or "capping" their liability at a set amount. To avoid exclusions or caps, plaintiffs' attorneys have either pleaded concurrent proximate causes of the injuries, or have omitted sexual contact from the claims alleged.[112]

B. Therapist-Patient Sexual Misconduct: Statutory Solutions

Despite the availability of common law actions against therapists, several states have adopted or considered statutory remedies. Several states have created task forces to study the issue.[113] As support grew within the profession for criminalization of therapist sexual abuse,[114] criminal and civil statutes have been considered.

1. Criminal Laws

Criminal sanctions provide the harshest penalties for therapists who become sexually involved with patients. However, for therapists who are not licensed or who do not have malpractice insurance or personal assets, criminal sanctions may be the only effective means of deterring therapist-patient sexual involvement.[115]

Nine states have criminalized therapist-patient sexual contact.[116] The statutes are narrowly drafted with specific definitions of "therapist" and "sexual contact." Seven of the nine states have made the offense a felony.[117] Four of the nine states cover some form of posttermination sexual contact.[118] Seven out of the nine remove the patient's consent as a defense.[119]

2. Civil Laws

Most states recognize a common law cause of action for patients who have been sexually involved with their therapists.[120] Four states have adopted legislation creating a civil cause of action against such therapists who become sexually involved with their patients.[121] While actionable behavior in two of the four states essentially duplicates the definitions in criminal statutes,[122] the other two states expand upon the definition.[123] All four states cover posttermination sexual contact as well as provide for victim shields.[124]

C. Sexual Misconduct by Physicians and Other Health Care Providers

As discussed above, lawsuits by patients claiming damages caused by non-coercive sexual contact with non-psychiatric physicians have been rare. Since the AMA's 1989 adoption of the ethical prohibition on physicians' sexual contact with patients,[125] there have been several licensing board decisions addressing the issue of physicians' sexual contact with "consenting" patients.[126] While remedies have always existed for patients who have been sexually assaulted by their physicians, new remedies may be evolving for injuries caused by physicians' sexual misconduct that does not constitute assault per se.

1. Sexual Assaults By Physicians

Sexual assaults by physicians during medical treatment are actionable either as criminal assaults or civil batteries. Five states have statutes that define sexual contact under the guise of treatment as rape.[127] Under these statutes a physician who engages in sexual contact during examination or treatment is guilty of a felony.[128] Alabama and Michigan have specific statutes criminalizing sexual contact between physician and patient resulting from a physician's misrepresentation.[129] A Wyoming statute criminalizes sexual contact when a person in a position of authority causes another to submit sexually.[130]

Recovering money damages from a physician for an intentional tort involves pursuing the physician's personal assets. Malpractice insurance does not cover such conduct if it is not related to the professional services provided. In Smith v. St. Paul Fire & Marine Insurance Co.,[131] for example, a general practitioner sexually assaulted three boys while treating them for hyperactivity, a heart condition, and a sports-related groin and knee injury. The court found that the insurance company was not liable for damages because the doctor's acts were "'solely for the satisfaction of [his] prurient interests'" and thus did not involve either the providing or withholding of professional services.[132]

However, the Arizona court in St. Paul Fire & Marine Insurance Co. v. Asbury,[133] held that professional liability insurance would cover claims against a gynecologist who manipulated patients' clitorises during medical examination. The court reasoned that "the patients' injuries which resulted and were made possible only because there were professional services rendered during this time and others which should have been rendered but were not."[134]

The Connecticut court recently found the malpractice insurer liable for damages caused when a dentist gave his patient excessive doses of nitrous oxide and then sexually assaulted her. In St. Paul Fire & Marine Insurance Co. v. Shernow,[135] the court held that because the administration of nitrous oxide was negligent and caused the patient harm, the incident was covered by the malpractice insurance carrier.

2. Non-Forced Sexual Misconduct

Few courts have addressed the issue of non-coercive sexual contact between non-psychiatric physician and patient. In Atienza v. Taub,[136] the California Court of Appeals found that a physician's sexual contact with his patient was not professional negligence or medical malpractice unless the sexual relationship was initiated by the physician under the guise of treatment of the patient. "Essentially, [the plaintiff] complains that she had an unhappy affair with a man who happened to be her doctor. This is plainly insufficient to make out a cause of action for professional negligence under any of the theories presented."[137]

Similarly, in Jennings v. Friedman,[138] the doctor engaged in sexual relations with his patient during the course of treatment. The Tennessee court held that the patient failed to state a claim for medical malpractice against the doctor as "there must have been a patient/physician relationship within the scope of which the medical malpractice occurred."[139] The plaintiff had testified that the sexual encounter with the doctor had nothing to do with medical treatment. The court stated, "The critical inquiry, however, is not the physician's specialty, but whether a physician engaged in sexual relations with a patient under the guise of rendering professional services."[140]

Other courts have found negligence. In Wall v. Noble,[141] the Texas Court of Appeals held that a plastic surgeon who had negligently performed breast lift surgeries on his patient and also engaged in sexual relations with her had been negligent in engaging in sexual relations with his patient while she was under his treatment.

More recently, state licensing boards have sanctioned physicians for engaging in sexual relations with their patients during the course of treatment. In Perez v. Board of Registration for the Healing Arts,[142] Dr. Perez, a gynecologist, became sexually involved with a patient seeking counseling and treatment from him. The licensing board found that the physician violated disciplinary rules by engaging in "dishonorable, unethical or unprofessional conduct of a character likely to defraud, deceive or harm the public."[143] The Board suspended the physician's license for two months followed by five years of probation.

IV. Conclusion

Therapists and other health care providers are increasingly being held liable for damages resulting from their sexual contact with patients. The major theories of liability for therapists revolve around therapists' mishandling of the patients' "transference" in the course of treatment. Therapists' liability may be expanding into posttermination sexual contact. Attention is also directed at exploring and expanding theories of liability for damages caused by non-psychiatric physicians' sexual relationships with patients.

V. Endnotes

1. Maura Campbell, The Oath: An Investigation of the Injunction Prohibiting Physician-Patient Sexual Relations, 32 Persp. Bio. & Med. 300 (1989).

2. See, e.g., Andrews v. United States, 732 F.2d 366, 369 n.2 (4th Cir. 1984).

3. Maura Campbell, The Oath: An Investigation of the Injunction Prohibiting Physician-Patient Sexual Relations, 32 Persp. Bio. & Med. 300 (1989).

4. Sheldon H. Kardener, Marielle Fuller & Ivan N. Mensh, A Survey of Physicians' Attitudes & Practices Regarding Erotic and Nonerotic Contact with Patients, 130 Am. J. Psychiatry 1077 (1973).

5. Kardener, supra note 4, at 1079.

6. JC Holroyd & Annette M. Brodsky, Psychologists' Attitudes and Practices Regarding Erotic and Nonerotic Physical Contact with Patients, 32 Am. Psychologist 843 (1977).

7. Nanette Gartrell, Judith Herman, Sylvia Olarte, M. Feldstein & R. Localio, Psychiatrist-Patient Sexual Contact: Results of a National Survey, I: Prevalence, 143 Am. J. Psychiatry 1126 (1986). See also, Judith Herman, Nanette Gartrell, Sylvia Olarte, M. Feldstein & R. Localio, Psychiatrist-Patient Sexual Contact: Results of a National Survey, II: Psychiatrists' Attitudes, 144 Am. J. Psychiatry 164 (1987).

8. Ken S. Pope, Patricia Keith-Speigel & BG Tabachnick, Sexual Attraction to Clients: The Human Therapist and (Sometimes) Inhuman Training System, 41 Am. Psychologist 147 (1986). See also, Gary Schoener, Jeanette Milgrom, John Gonsiorek, Ellen Luepker & Roy Conroe, Psychotherapists' Sexual Involvement With Clients: Intervention and Prevention (1989).

9. Shirley Feldman-Summers & Gwendolyn Jones, Psychological Impacts of Sexual Contact Between Therapists or Other Health Care Practitioners and Their Clients, 52 J. Counseling & Clin. Psychology 1054 (1984).

10. Feldman-Summers, supra note 9, at 1058.

11. Feldman-Summers, supra note 9, at 1060.

12. Shirley Feldman-Summers & Gwendolyn Jones, Psychological Impacts of Sexual Contact Between Therapists or Other Health Care Practitioners and Their Clients, 52 J. Counseling & Clin. Psychology 1054, 1060-61 (1984).

13. Sheldon H. Kardener, Marielle Fuller & Ivan N. Mensh, A Survey of Physicians' Attitudes & Practices Regarding Erotic and Nonerotic Contact with Patients, 130 Am. J. Psychiatry 1077, 1080 (1973) (18% of obstetricians/gynecologists responding self-reported engaging in erotic contact with patients; 13% of general practitioners; 12% of internists; and 10% of both surgeons and psychiatrists).

14. Nanette Gartrell, Nancy Milliken, William H. Goodson, Sue Thiemann & Bernard Lo, Physician-Patient Sexual Contact: Prevalence & Problems, 157 Western J. Med. 139 (1992).

15. See generally, Linda Jorgenson, Rebecca Randles & Larry Strasburger, The Furor Over Psychotherapist-Patient Sexual Contact: New Solutions to an Old Problem, 32 Wm. & Mary L. Rev. 645, 647-8 (1991).

16. Council of Ethical & Judicial Affairs of the American Medical Association, Current Opinions of the Council of Ethical & Judicial Affairs 1989 (1989).

17. Council of Ethical & Judicial Affairs of the American Medical Association, Sexual Misconduct in the Practice of Medicine, 266 J.A.M.A. 2741 (1991).

18. Id. at 2743.

19. See generally, W.R. Habeeb, Annotation, Intercourse Accomplished Under Pretext of Medical Treatment as Rape, 70 A.L.R. 824 (1960).

20. See generally, W.R. Habeeb, Annotation, Intercourse Accomplished Under Pretext of Medical Treatment as Rape, 70 A.L.R. 824 (1960).

21. See, Sigmund Freud, Further Recommendations in the Technique of Psycho-Analysis: Observations on Transference-Love, in 2 Collected Papers 377 (J. Riviere trans. 1959).

22. See generally, M. Tansey & W. Burke, Understanding Countertransference: From Projective Identification to Empathy (1989).

23. See, e.g., Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986); Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968).

24. See, e.g., In re Pons, 1991 WL 245003 (Ohio App. 1991).

25. 436 S.W.2d 753 (Mo. 1968).

26. Id.

27. Id. at 755-56.

28. Id. at 761.

29. 436 S.W.2d 753 (Mo. 1968).

30. See also, Linda Jorgenson, Rebecca Randles & Larry Strasburger, The Furor Over Psychotherapist-Patient Sexual Contact: New Solutions to an Old Problem, 32 Wm. & Mary L. Rev. 645 (1991).

31. See generally, Restatement (Second) of Torts [[section]] 299A (1956). See also J. Smith, Medical Malpractice: Psychiatric Care 5-8 (1986).

32. 436 S.W.2d 753, 761 (Mo. 1968).

33. See generally, Linda Jorgenson, Rebecca Randles & Larry Strasburger, The Furor Over Psychotherapist-Patient Sexual Contact: New Solutions to an Old Problem, 32 William & Mary L. Rev. 645, 685-91 (1991).

34. See, e.g., Robert Simon, Psychological Injury Caused by Boundary Violation Precursors to Therapist-Patient Sex, 21 Psychiatric Annals 614 (1991).

35. See generally, Simon supra note 34.

36. See generally, Linda Jorgenson & Pamela Sutherland, Alternative Theories of Psychotherapist Liability: What's Sex Got To Do With It?, Trial (to be published, May, 1993).

37. See generally, Jerry Adler & Debra Rosenberg, Dr. Bean and Her Little Boy, Newsweek, April 13, 1992, at 56.

38. See generally, Riley v. Presnell, 565 N.E.2d 780 (Mass. 1991).

39. See generally, Ralph Slovenko, Malpractice in Psychiatry and Related Fields, 9 The J. of Psychiatry & Law 5 (1981).

40. See generally, Cranford Ins. Co. v. Allwest Ins. Co., 645 F. Supp. 1440 (N.D. Cal. 1986). See also, G. Schoener, J. Milgrom, J. Gonsiorek, E. Luepker & R. Conroe, Psychotherapists' Sexual Involvement with Clients: Intervention and Prevention (1989) (listing potential causes of action); Linda Jorgenson, Steven Bisbing & Pamela Sutherland, Therapist-Patient Sexual Exploitation and Insurance Liability, 27 Tort & Ins. L. J. 595, 609-12 (1992) (detailed listing of acts constituting negligent psychotherapy and cases finding therefor).

41. Robert Simon, Clinical Psychiatry & The Law 210 (1989).

42. See, e.g., Richard Knox, Therapy Guidelines Take Shape in Shade of Bean-Bayog Case, Boston Globe, Sept. 23, 1992, at 27, col. 2.

43. See generally, Robert Flannigan, The Fiduciary Obligation, 9 Oxford J. Legal Stud. 285 (1989).

44. See Black's Law Dictionary 564 (5th ed. 1979).

45. See, e.g., Linda Jorgenson & Rebecca Randles, Time Out: The Statute of Limitations and Fiduciary Theory in Psychotherapist Sexual Misconduct Cases, 44 Okla. L. Rev. 181 (1991).

46. 366 N.Y.S.2d 297 (Civ. Ct. 1975).

47. 366 N.Y.S.2d 297, 300. See also, Horak v. Biris, 474 N.E.2d 13 (Ill. App. 1985) (social worker's violation of trust relationship with patient was a breach of the fiduciary relationship); Riley v. Presnell, 565 N.E.2d 780 (Mass. 1991) (recognizing fiduciary aspects to psychiatrist-patient relationship); Mazza v. Huffaker, 300 S.E.2d 833 (N.C. App. 1983) (psychiatrist held to higher duty of care with patient).

48. See generally, Linda Jorgenson & Rebecca Randles, Time Out: The Statute of Limitations and Fiduciary Theory Applied in Psychotherapist Sexual Misconduct Cases, 44 Okla. L. Rev. 181 (1991).

49. Restatement (Second) of Torts [[section]][[section]] 436, 436A (1965).

50. 770 P.2d 278 (Cal. 1989).

51. Id. But see, Hammond v. Lane, 515 N.E.2d 828 (Ill. App. 1987) (plaintiff failed to state a claim for negligent infliction of emotional distress as plaintiff's complaint failed to allege that she was put in fear for her own personal safety).

52. 243 Cal.Rptr. 807 (Cal.App. 1988).

53. Id. at 810. See also, Rowe v. Bennett, 514 A.2d 802 (Me. 1986) (patient stated a claim for negligent infliction of emotional distress based on defendant social worker's involvement with the patient's partner).

54. See generally, Scott D. Marrs, Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and "Fear of Disease" Cases, 28 Tort & Ins. L. J. 1 (1992).

55. Sullivan v. Boston Gas Co., No. SJC-5960, slip op. at 14 (Mass. Jan. 12, 1993)_.

56. See generally, Linda Jorgenson, Steven Bisbing & Pamela Sutherland, Therapist-Patient Sexual Exploitation & Insurance Liability, 27 Tort & Ins. L. J. 595 (1992).

57. 592 A.2d 1126 (Md.App. 1991).

58. Id. at 1134.

59. 263 So.2d 256 (Fla.Dist.Ct.App. 1972).

60. Id. at ____. See also, Spiess v. Johnson, 748 P.2d 1020 (Or. App 1988) (spouse stated cause of action for breach of contract against psychiatrist who engaged in sexual relations with patient/wife).

61. 698 S.W.2d 94 (Tex. 1985).

62. See, e.g., Duffee v. Boston Elevated Ry., 77 N.E. 1036 (Mass. 1906) (the right of recovery for loss of consortium is an independent claim and does not derive from the negligence claim of the other spouse); Pinheiro v. Medical Malpractice Joint Underwriting Association, 547 N.E.2d 49 (Mass. 1989). See also, Spero & Jorgenson, Consortium, 84-12 Mass. Continuing Legal Educ. 71 (1983).

63. 818 P.2d 8 (Utah 1991).

64. 300 S.E.2d 833 (N.C. Ct. App. 1983).

65. 584 A.2d 69 (Md. 1991).

66. But see, Gasper v. Lighthouse, Inc., 533 A.2d 1358 (Md. App. 1987): husband and wife sought marital counseling from defendant; defendant engaged in sexual relations with wife. Court held that husband failed to state a claim for relief as the "real basis" for the husband's claim was the therapist's "cuckolding activity" which was precluded as the state had abolished claims for alienation of affections. However, this case was in essence nullified by Figeiredo-Torres.

67. 599 A.2d 1193 (Md. App. 1992).

68. See also, Harrington v. Pages, 440 So.2d 521 (Fla. App. 1983) (non-patient husband did not state a claim for malpractice or intentional infliction of emotional distress against physician who engaged in sexual relations with his patient, the plaintiff's wife; Florida Statute barring sexual misconduct by physicians did not create an exception to the statute barring claims for alienation of affection); Spiess v. Johnson, 748 P.2d 1020 (Or. App. 1988): psychiatrist engaged in sexual contact with patient; patient's husband sued for malpractice, breach of fiduciary duty, breach of contract, invasion of privacy and intentional infliction of emotional distress. Court held that as there was no patient-psychiatrist relationship between plaintiff and defendant, there could be no duty owed by psychiatrist to husband. However, husband could recover on theories of breach of contract, invasion of privacy and intentional infliction of emotional distress.

69. See generally, Van Dyke v. St. Paul Fire & Marine Insurance Co., 448 N.E.2d 353 (Mass. 1983) (medical partnership is ordinarily liable for the malpractice of individual partners).

70. Ruane v. Cooper, 512 N.Y.S.2d 38 (N.Y. 1987): if three doctors practicing together held themselves out to the public as a joint venture or partnership, they would be vicariously liable for each other's malpractice, then service of the complaint upon one would constitute service on all.

71. Corgan v. Muehling, 522 N.E.2d 153 (Ill. App. 1988): Rodriguez had a consultant relationship with Muehling and "billings for Muehling's services were submitted under Rodriguez's name in cases in which consultations had been had." Muehling engaged in sexual contact with the plaintiff; plaintiff brought action against Rodriguez for negligent supervision and settled independently with Rodriguez.

72. New Jersey Statutes 2A:53A-7: charitable organizations completely immune from liability for negligent torts.

73. Massachusetts General Laws Chapter 231 [[section]] 85K: if tortious activity was committed in the course of any activity carried on to accomplish directly the charitable purposes of the charitable organization, then the charitable organization's liability is limited to $20,000 exclusive of interest and costs. However, this "cap" is inapplicable if the tortious activity was committed while the charitable organization was engaged in activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes.

74. Restatement (Second) of Agency [[section]] 228 (1958).

75. 732 F.2d 366 (4th Cir. 1984).

76. See also, Cosgrove v. Lawrence, 520 A.2d 844 (N.J.Super. 1986); Sharples v. State, 793 P.2d 175 (Hawaii, 1990) (psychiatrist who engaged in sexual relations with patient was not acting within the scope of his employment and therefore the employer could not be held liable under doctrine of respondeat superior); Bunce v. Parkside Lodge of Columbus, 596 N.E.2d 1106 (Ohio App. 1991) (therapist acted outside of his scope of employment when he had sexual relations with plaintiff; "[We do not] see any difficulty in examination of the employee's motive in situations such as the case at bar, since the moment when a counselor's conduct progresses from a friendly gesture to prohibited sexual touching is capable of clear definition. Even clearer is the concept that sexual contact occurring in an orthodox counseling program would be completely unrelated to the business of the employer."); Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989) (no liability for the county under a respondeat superior theory for a county-employed social worker's sexual misconduct with the plaintiff.

77. 329 N.W.2d 306 (Minn. 1982).

78. Id. at 311.

79. 791 P.2d 344 (Alaska 1990).

80. Id. at 348.

81. Id. at 348 n.7.

82. Id. at 349. See also, Stropes v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989) ("An employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominantly motivated by an intention to benefit the employee himself."). See generally, Alan O. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harvard Law Review 563 (1988).

83. Id. at 254.

84. 547 N.E.2d 244 (Ind. 1989).

85. 117 N.E. 328 (Mass. 1917).

86. But see, Community Theatres Co. v. Bentley, 76 S.E.2d 632 (Ga.App. 1953). Theater manager sodomized minor patron; court found that manager acted outside scope of his employment and also specifically rejected application of common carrier duty in employer-employee cases: "'The principles of law which are applicable in litigation growing out of the relationship of principal and agent or master and servant do not fully define the rights, liability and duties of common carriers and their passengers.'"

87. 211 N.E.2d 253 (Ill. 1965).

88. See, e.g., Bost v. Riley, 262 S.E.2d 391 (N.C. App. 1980) (duty of hospital to make reasonable inquiry of qualifications of a physician seeking to practice at hospital); Joiner v. Mitchell County Hospital Authority, 186 S.E.2d 307 (Ga. App. 1971), aff'd, 189 S.E.2d 412 (Ga. 1972) (failure of hospital's screening responsibility was viewed as an independent act of negligence on hospital's part, distinct from physician's negligence); Johnston v. Misericordia Community Hospital, 301 N.W.2d 156 (Wis. 1981) (the failure to properly check a physician's credentials upon application to a medical staff also lead to hospital liability). See also, Evan F. v. Hughson United Methodist Church, 10 Cal.Rptr.2d 748 (Cal.App. 1992) (pastor sexually molested child parishioner; court held that as there was evidence that church had known of pastor's prior acts of sexual misconduct, the church could be liable on grounds of negligent hiring).

89. 763 P.2d 275 (Colo. 1988).

90. 732 F.2d 366 (4th Cir. 1986).

91. See also, Simmons v. United States, 805 F.2d 1363 (9th Cir., 1986) (the United States was liable for the supervising therapist's negligence in failing to do anything to prevent further harm to the patient, after the supervisor learned of the therapist's sexual contact with the patient); Erickson v. Christenson, 781 P.2d 383 (Or.App. 1989) (jury could infer that church created risk of harm to plaintiff by failure to supervise, investigate, remove, or warn parishioners of pastoral counselor's abusive behavior); and Does v. CompCare, Inc., 763 P.2d 1237 (Wash. App. 1988) (court may hold employer liable for acts beyond scope of employment if employer had prior knowledge of employee's dangerous tendencies).

92. 520 N.E.2d 139 (Mass. 1988).

93. 379 N.W.2d 189 (Minn. App. 1985).

94. See, e.g., Ohio Statutes

95. See generally, Linda Jorgenson & Paul Appelbaum, For Whom the Statute Tolls: Extending the Time During Which Patients Can Sue, 42 Hosp. & Comm. Psychiatry 683 (1991).

96. 453 F. Supp. 765 (E.D.Pa. 1978), aff'd, 594 F.2d 854 (3d Cir. 1979), cert. denied, 444 U.S. 840 (1979).

97. See also, Simmons v. United States, 804 F.2d 1363 (9th Cir. 1986); Shamloo v. Lifespring, Inc., 713 F. Supp. 14 (D.D.C. 1989); Riley v. Presnell, 565 N.E.2d 780 (Mass. 1991). But see, Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992) (discovery rule inapplicable despite plaintiff's contention that she had repressed all memories of the priest's abuse and, upon remembering the abuse, had not connected her injuries with the abuse. The court held that as the plaintiff had known that her mental functioning was "impaired," she should have known that the defendant's conduct was the cause of the harm.).

98. 568 N.Y.S.2d 250 (1991).

99. Id. at 251.

100. 565 N.E.2d 780 (Mass. 1991).

101. Colo. Rev. Stat. [[section]] 12-43-704(q) (1992).

102. Wis. Stat. Ann. [[section]] 895.70(2) (West 1988).

103. Ill. Stat. Ann. Chap. 70 [[section]] 801 (Smith-Hurd Supp. 1989).

104. Minn. Stat. [[section]] 148A (West 1985).

105. 537 N.Y.S.2d 446 (Sup. Ct. 1988).

106. Paul Appelbaum & Linda Jorgenson, Posttermination Sexual Contact After Termination of Treatment: An Analysis & a Proposal, 148 Am. J. Psychiatry 1466 (1991).

107. American Psychological Ass'n, Ethical Principles of Psychologists, American Psychologist Standard 4.07 (Dec. 1992).

108. American Psychiatric Association, Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (1989).

109. See generally, Linda Jorgenson, Steven Bisbing & Pamela Sutherland, Therapist-Patient Sexual Exploitation and Insurance Liability, 27 Tort & Ins. L.J. 595 (1992).

110. 459 N.W.2d 698 (Minn. 1990).

111. Id. at 702.

112. See, e.g., Cranford Ins. Co. v. Allwest Ins. Co., 645 F.Supp. 1440 (N.D.Cal. 1986). For a detailed discussion of this issue, see Linda Jorgenson, Steven Bisbing & Pamela Sutherland, Therapist-Patient Sexual Exploitation & Insurance Liability, 27 Tort & Ins. L. J. 595 (1992); Linda Jorgenson & Pamela Sutherland, Alternative Theories of Psychotherapist Liability: What's Sex Got To Do With It?, Trial (accepted for publication May, 1993).

113. See, e.g., Act Establishing House Comm. on Sexual Misconduct by Physicians, Therapists & Other Health Care Professionals, Mass. H.R. 5437, 174th Leg., 2d Sess., 176 Gen. Court (1989).

114. Masters & Johnson, Principles of the New Sex Therapy, 133 Am. J. Psychiatry 548 (1976).

115. For a thorough discussion of the debate over criminalization, see Larry Strasburger, Linda Jorgenson & Rebecca Randles, Criminalization of Psychotherapist-Patient Sex, 148 Am. J. Psychiatry 859 (1991).

116. Cal. Bus. & Prof. Code [[section]] 729 (West Supp. 1989); Colo. Rev. Stat. [[section]] 18-3-405.5(4)(c) (Supp. 1988); 1990 Fla. Session Law Serv. ch. 90-70 [[section]] 1(4)(a) (West); Ga. Code Ann. [[section]] 16-6-5.1 (Michie 1991); Iowa Code [[section]] 709.15 (1991); Me. Rev. Stat. Title 17-A [[section]] 253(2)(I) (Supp. 1989); Minn. Stat. [[section]] 609.341 et seq. (Supp. 1990); N.D. Cent. Code 12-1-20-06.1(1) (Michie Supp. 1989); and Wis. Stat. Ann. [[section]] 940.22(2) (1983).

See also, Ferguson v. State, 824 P.2d 803 (Colo. 1992) (upholding conviction under Colorado statutes Colo. Rev. Stat. [[section]][[section]] 13-4-102(1)(b), 18-3-405.5 of psychotherapist who engaged in sexual relations with patient).

117. California and Iowa impose misdemeanor penalties on therapist-patient sexual contact.

118. California, Florida, Iowa and Minnesota.

119. Iowa and Maine do not specifically address the issue of the patient's consent.

120. See infra notes ___ - ___ and accompanying text.

121. Cal. Bus. & Prof. Code [[section]] 43-93 (West Supp. 1989); Ill. Stat. Ann. Chap. 70 [[section]] 801 (Smith-Hurd Supp. 1989); Minn. Stat. [[section]] 148A (West 1985); and Wis. Stat. Ann. [[section]] 895.70(2) (West 1988).

122. Minnesota and California.

123. Illinois and Wisconsin.

124. See supra note 118.

125. Council on Ethical & Judicial Affairs, American Medical Association, Sexual Misconduct in the Practice of Medicine, 266 J.A.M.A. 2741 (1991).

126. See, e.g., Gromis v. Medical Board of Calif., 10 Cal. Rptr.2d 452 (Cal.App. 1992).

127. Colo. Rev. Stat. [[section]][[section]] 18-3-403(h), -404(g) (1986); Mich. Comp. Laws Ann. [[section]] 750.520b(1)(f)(iv) (West Supp. 1990); N.H. Rev. Stat. Ann. [[section]] 632-A:2(VII) (1986); R.I. Gen. Laws [[section]] 11-37-2(D) (Supp. 1989); Wyo. Stat. [[section]] 6-2-303(a)(vii) (1988).

128. See supra note 124.

129. Ala. Code [[section]] 13A-6-65; Mich. Comp. Laws Ann. [[section]] 750.90 (West 1968).

130. Wyo. Stat. [[section]] 6-2-303(a)(vi) (1988).

131. 353 N.W.2d 130 (Minn. 1984).

132. Id. at 132. See also, St. Paul Insurance Company of Illinois v. Cromeans, 771 F.Supp. 349 (N.D. Ala. 1991) (physician's acts of masturbating in front of plaintiffs, fondling plaintiffs, attempting to get them to have sex with him or touch his genital area was held to constitute intentional acts excluded from coverage by the malpractice insurer. The court confirmed Alabama law voiding as against public policy all contract insuring against intentional misconduct.); Collins v. Covenant Mutual Ins. Co., 604 N.E.2d 1190 (Ind.App. 1992); Roe v. Federal Insurance Co., 412 Mass. 43 (1992) (dentist's sexual relationship with patient not covered by malpractice insurance as "the only connection between the sexual misconduct and the treatment in this case is that the activity occurred in the dentist's office"); St. Paul Fire & Marine Ins. Co. v. Mori, 486 N.W.2d 803 (Minn.App. 1992) (malpractice insurer not obligated to pay for judgment against gynecologist who sexually assaulted patients); Snyder v. Major, 789 F.Supp. 646 (S.D.N.Y. 1992) (plastic surgeon had sexual relations with patient while she was partially sedated prior to a medical procedure. Court held that malpractice insurer not liable as "sexual conduct is not a medical incident for insurance purposes unless the physician is a psychiatrist and the sexual incident arises out of a therapeutic relationship."); Washington Insurance Guaranty Assoc. v. Hicks, 744 P.2d 625 (Wash.App. 1987) (chiropractor raped patient during medical treatment; patient brought claim against chiropractor alleging malpractice, breach of fiduciary duty and "outrage"; insurance company was not required to indemnify chiropractor as the assault was not part of the "professional services rendered").

133. 720 P.2d 540 (Ariz. 1986).

134. See also, St. Paul Fire & Marine Insurance Co. v. Couch, 1990 WL 120722 (Tenn.App. 1990) (gynecologist manipulated patient's genitals during routine examination; court followed the arguments presented in Asbury and held that the act complained of resulted from "providing or withholding of professional services" and that the insurance company was liable).

135. ___ A.2d ___, 222 Conn. 823 (1992).

136. 239 Cal.Rptr. 454 (Cal.App. 1987).

137. Id. at 457.

138. 875 F.2d 864 (6th Cir. 1989) (unpublished decision).

139. Id.

140. Id. See also, Jure v. Raviotta, 1992 WL 385062 (La.App. 4th Cir. 1992) (ob/gyn who also counseled patient, negligently prescribed narcotic drugs for patient and engaged in sexual contact with patient; court held that sexual misconduct did not constitute medical malpractice as defined by Louisiana statute); Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex. App. 1992) (husband sued pediatrician who engaged in sexual relations with wife for alienation of affections; court held that this cause of action was not covered by pediatrician's malpractice policy).

141. 705 S.W.2d 727 (Tex. App. 1986).

142. 803 S.W.2d 160 (Mo. App. 1991).

143. Id. at 165.

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Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients